Posted On by &filed under High Court, Madras High Court.

Madras High Court
Ponnusami Udayar And Anr. vs Emperor on 25 September, 1928
Equivalent citations: AIR 1929 Mad 115
Author: Curgenven


Curgenven, J.

1. The two petitioners filed this criminal revision petition against the order of the Sub-Divisional Magistrate of Tirukoilur dated 6th October 1927 deciding to continue the criminal case filed against them by the police under Sections 465 and 109, I.P.C., and Section 411, I.P.C., respectively.

2. In a rioting case tried by the Sub-Magistrate of Tirukoilur ten persons were accused and they were defended by a vakil named Anantha Ayyar, now petitioner 2. At one of the hearings the tenth accused was absent and reported to be ill. The vakil offered to get a special vakalat from him, so that the case might be proceeded With in his absence. It is alleged that this special vakalat, instead of being executed by accused 10, who lived at a distance of nine miles from the Court, was fabricated in the witness shed adjoining the Court building. The vakil, it is said, dictated it; it was written by accused 9 in the rioting case and the son of the absent accused 10 affixed his father’s name to it. This document was then produced in Court by the vakil as genuine. According to the Police version, the whole transaction in the witness shed was observed and as soon as the document was produced the attention of the Sub-Magistrate was drawn to the circumstances, a comparison of the signature with the admitted signatures of accused 10 was made and on the same day, the Sub-Magistrate sent the document to the police for investigation. The inquiry resulted in the institution by the police of the proceedings out of which this petition arose. Besides the vakil and the accused 10’s son, accused 9 was also prosecuted but on the ground that he was a party to the proceedings in which the vakalat. was produced, and therefore that his prosecution could only have been initiated under Sections 195 (1) (c) and 476, Criminal P.C., by the Sub-Magistrate, the case against him was dropped. After the case against the other two accused had made considerable progress, the question whether their prosecution too was not incompetent in view of the same provision of law was raised and decided in the order now under reference.

3. This is the main point which has been brought up here. The question is whether, when an offence of forgery is committed by more than one person, one at least being a party. to the proceeding in which the document is produced, such participants in the forgery as are not parties to the proceeding may be prosecuted otherwise than under the provisions of Section 195 and 476, Criminal P.C. The answer to the question depends primarily upon the construction to be placed upon the term ‘offence’ as it is used in Clause (c), Section 195 (1). Whether it denotes the transaction of forgery as a whole, so that the Court is debarred from taking cognizance of that transaction, including the shares taken in it by non-parties, as well as parties, or whether it refers only to the share taken in the transaction by a party, so that power to proceed against nonparties is not affected. It appears to me that the language of the section is not incompatible with either construction. It may be reasonable to construe the word ‘offence’ as there used, as comprehending the whole transaction in which the act of forgery is committed, or it may be read in the sense in which it is used in some of the sections of the Criminal Procedure Code, e.g., Section 239, as the act of a single person who contributes his part to the transaction. An examination of the sections in Ch. 19 of the Code, headed ‘of the charge,’ leads to the conclusion that the word there bears the latter or analytical meaning of an act of a single person. I have only further to observe that if the former and undoubtedly exceptional meaning is to be attached to it the language of the section might well have made this clear.

4. A large number of rulings have been brought to my attention and with a single exception they favour the latter of the two constructions. The exception is afforded by a Bombay case In Re: Narayan Dhonddev Risbud [1910] 12 Bom. L.R. 383. The learned Judges who decided that case held that it is the “offence” in itself, not any particular offender’s offence which the section aims at and in the case under reference the “offence” would mean the offence generally of forgery; and they considered that if the criminal Court tried the abettors of a party under Section 467, I.P.C., it would upon this view be taking cognizance in “the offence” as those words are used in the clause which is the action specially forbidden. They go on to point out that this reading of the section appears to involve no undue straining of the language and to give a more reasonable interpretation than is arrived at by the rival construction; for upon that construction, while the prosecution of the main offender could not be instituted without a sanction (as the law then stood) any minor orders or abettors or accessories of his could be so prosecuted. I must confess that I feel much in sympathy with the view that this is how the law should stand. Nevertheless this case not only stands alone but makes no reference to the large body of judicial opinion which favours a contrary interpretation.

5. There is in the first place a series of cases decided by this High Court. I may pass over Eadara Viranna v. Queen [1881] 3 Mad. 400 because that was decided under Section 469 of the Code of 1872 which laid down that no complaint of the character in question should be entertained “against a party.” That clearly rendered sanction in the case of non-parties unnecessary. The report in John Martin Sequeira v. Luja Bai [1902] 25 Mad. 671 does not make it clear whether the act of forgery was participated in by a party and of course if that was not so no question of sanction would arise upon either reading of the provision. The learned Judges-appear, however, to have entertained no-doubt as to the meaning of the sub-section. The condition with regard to participation both of party ‘and of non-party was fulfilled in Anna Ayyar v. Emperor [1907] 80 Mad. 226 and although the question for decision there was whether a criminal prosecution for forgery should be suspended until the civil Court in which the document had been produced had been decided, Benson and Wallis, JJ., took occasion to direct the dismissal of the complaint altogether as against three of the accused, on the ground that they were parties to the suit, and their observation as regards the other accused is:

we think that Section 195 (c) does not render sanction necessary as they are not parties to the proceeding in which the document has been produced.

6. I cannot accede to the contention that it was unnecessary to decide this point in the circumstances which arose, and the decision of it was certainly not an obiter dictum but the application of an aspect of the law which had apparently been; overlooked by the trial Court. I think therefore that even if the decision stood; alone I should have to regard it as binding upon me. There are then two cases Re-Ramalingam [1917] 40 Mad. 100 and the Full Bench case Govind Ayyar v. Rex [1919] 42 Mad. 540 which deal with the connexion between Sections 476 and Section 195, Criminal P.C. The most that can be extracted from them for our purpose is that the learned referring Judges in the latter case (the second para of the head note of which is misleading) upon receipt of the Full Bench opinion, applied the law in the generally accepted sense. That, however, has only been ascertained by a reference to the records. Next in S. J., of Cuddapah v. Kondeti Obalesu [1914] 26 M.L.J. 220, Sadasiva Ayyar. J., following in John Martin v. Luja Bai put the same construction upon the section. The last Madras case quoted is In Re: Mattam Shinna Viraiah A.I.R. 1923 Mad. 87, but that again is distinguishable oh the ground that the offence of forgery was not taken part in by a party.

7. Since the current of opinion in this High Court is all one way, it seems unnecessary to examine other cases and I need only refer to Debilal v. Dhajadhari Goshami [1911] 15 C.W.N. 565, Guruswami C.T. v. D.K.S. Ibrahim A.I.R. 1925 Rang. 28 and Shwe Phe v. Ma Ma Hmoke A.I.R. 1925 Rang. 195. No doubt the grounds accepted in the two latter cases may be open to critisicm. It is at least incontestable however that with the single exception of the Bombay case here and elsewhere the section has been uniformally construed in one way. In this state of the authorities, it is impossible for me to rule that the learned Sub-Divisional Magistrate has erred in law in deciding that the trial of the two petitioners should continue.

8. Three further points have been taken : One is that the vakil was himself a party to the criminal proceedings by virtue of the special vakalat which he held. I do not however, think, that this made him a “party” for the purpose of Section 195 (1) (c), Criminal P.C. It has been pointed out that he only represented his client in a certain restricted sense, for example he was not liable to be convicted and sentenced to imprisonment in the client’s place.

9. The next point, which, however, Mr. Jayarama Ayyar has wisely abandoned, related to the suggested existence of a subsidiary proceeding or lis developing into the police enquiry and the subsequent prosecution as soon as the vakalat was»filed. It is impossible to maintain that the vakalat was produced in that proceeding.

10. The third and last point relates to the procedure adopted by the Police. I have said that the Sub-Magistrate forwarded the vakalat to the police for investigation and upon a reference by them he stated that the inquiry was ordered under Section 156, Criminal P.C. which I take to be a mistake for Section 155. The offence was non-cognizable, and under Section 155 (2) it required an order by the Magistrate to investigate it. After that investigation was made a complaint was filed by the Sub-Inspector before the Sub-Divisional Magistrate of Tirukoilur. It is said that this was an unauthorized course and that the Police should have reported the result of their inquiry to. the Sub-Magistrate who ordered it. It seems clear that the police acting under Section 173, Criminal P.C., were justified in making a report of the offence found, which was triable by a First Class Magistrate, to the Sub-Divisional Magistrate, as a Magistrate empowered to take cognizance of the offence on a police report and it is not contended that the fact that a complaint and not a charge-sheet was submitted, though it may have been an irregular course, invalidates the proceeding; I cannot see therefore that any material irregularity took place nor do I think that the case cited in Appa Ragho Bhogle v. Emperor [1915] 17 Bom. L.R. 69, has any bearing upon the facts, be-cause that was a case where the police investigated a charge of making a false complaint and without making any report at all instituted proceedings against the accused.

11. My conclusion accordingly is that there are no grounds to interfere with the decision of the learned Sub-Divisional Magistrate. The criminal case is dismissed.

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